Cumulative trauma claims focus as states weigh changesPosted On: Feb. 19, 2020 7:00 AM CST
The only state that doesn’t allow for repetitive-motion workers compensation claims is in the process of reconsidering its position, while another state with a high incidence of such claims has seen those injuries double in frequency since 2008.
The injuries, which lack a specific date as required on some workers comp forms, are described in comp circles as pain and discomfort caused over years of working. Experts say they can affect soft tissue and bones, and a multitude of body parts, and are often litigated over causation: Did the injury occur during the scope of employment?
Carpal tunnel and spinal disc problems are common cumulative trauma claims—injuries that can happen outside of work, raising concerns about compensability, experts say.
“The challenge facing employers with regard to cumulative trauma injuries is the inability to determine if the alleged injury is due to pre-existing conditions,” said Max Koonce, Memphis-based chief claims officer for third-party administrator Sedgwick Claims Management Services Inc. Other challenges include, “determining if the job task aggravated any underlying condition, determining if the duration of time of the employee in the position that required repetitive tasks actually supports causation, (and) ultimately it evolves around the treating physician determining causation of the cumulative trauma injury,” he said.
All states except Virginia permit cumulative trauma compensation claims, according to a roundup of state comp laws by the Cambridge, Massachusetts-based Workers’ Compensation Research Institute. There is considerable variance, though, from state to state.
Louisiana, for example, will accept a cumulative trauma claim if the injury is accepted as an occupational injury. Arkansas limits claims to rapid repetitive motion, back or neck, and hearing loss injuries. And Virginia lists carpal tunnel as an accepted injury but only if the onset is sudden, such as if a “pallet falls on your wrist,” said Peter Irot, Roanoke Virginia-based partner in Gentry Locke LLP’s insurance practice group, which is monitoring possible changes to Virginia’s system.
H.B. 617, which passed the Virginia House of Representatives 55 to 44 on Feb. 10 and was sent to the Senate Committee on Commerce and Labor, calls for the Virginia Workers' Compensation Commission to hire an “independent and reputable national research organization with expertise in workers' compensation policy” to conduct an analysis of cumulative trauma claims among workers nationwide and report to the legislature by Nov. 30.
The bill follows a 2019 report by the Joint Legislative Audit & Review Commission to Gov. Ralph Northam and the General Assembly that suggested changes to Virginia’s comp system. The list included expanding “coverage to allow cumulative trauma injuries to be compensable.” In January when lawmakers introduced H.B. 617, the language called for permitting cumulative trauma claims in comp, but the revised version sent to the Senate only calls for a study of the possible change.
“If the study causes the General Assembly to decide that it wants to allow for cumulative trauma then I think the study would be well advised to take into account the cost of insurance to businesses,” Mr. Irot said. “It is going to raise workers comp insurance rates.”
The report to lawmakers and the governor pegged costs as a complication: “Employer costs have been cited by multiple stakeholders as the primary reason why Virginia’s workers’ compensation system does not cover cumulative trauma injuries. However, it does not appear that cumulative trauma injuries are a major cost driver of workers’ compensation premiums in other states.”
Such is not the case in California, according the Workers’ Compensation Insurance Rating Bureau of California, which reported in 2018 that the frequency of cumulative trauma claims had doubled since 2008 and that such cases accounted for 18% of lost-time indemnity claims in 2014, up from 8% in 2005. The ratings agency also reported in 2018 that 80% of statewide cumulative trauma claims involved attorney representation and 61% involved multiple body parts.
“We keep seeing the proliferation of these cumulative trauma injuries filed; it’s not something that’s going away unless our legislature does something about it,” said Julio Martinez, managing partner at Testan Law APC Corp. in Orange, California. The issue has been a topic in California for years, with employers and insurers now calling on lawmakers to initiate change.
Mr. Martinez, who represents employers, said California is unique in that the courts require a 1% causation bar to submit a workers compensation claim — meaning work can be the cause of just 1% of the injury. “This is difficult for attorneys and payers to get a grasp on because there is a low threshold to prove an injury; that is what drives this.”
Other states have that bar set at 50%, Mr. Martinez said. He added that “some of the injuries make sense,” but that others are not caused by work, which raises concerns for payers and employers. Only reforms can change that, he said.
Jeff Adelson, a partner with the Newport Beach, California, firm Adelson McLean P.C., which represents employers, acknowledged that cumulative trauma claims come with suspicion but that many “are real” and have been acknowledged in industry for “over 100 years.”
“The problem is our bodies do wear out with age, and the things we do cause our bodies to react if we go through repetitive motion,” said Mr. Adelson, who drew a comparison between two types of knee injuries: “Let’s say a carpet layer bangs his knee on the ground repeatedly, suffers an obvious, documentable, legitimate injury to their knee, and then someone says just because it wasn’t a one-time incident it didn’t happen. But accidentally bang your knee on your desk and someone can say, ‘Yes, that’s an injury.’”
Cumulative trauma “is something that people take advantage of and, yes, it costs insurance companies a lot of money, but that is not the fault of the injured worker,” Mr. Adelson said. “There has to be a way to compensate the legitimately injured worker who puts their hard work into physical work that no one else wants to do, or what they have been trained to do and that’s all they can do. These injuries are real. If you can’t control them it’s not the fault of the legitimately injured worker. It’s the fault of the courts or the legislature.”